United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 25, 2005
Charles R. Fulbruge III
Clerk
No. 04-40700
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
CHARLES ANTHONY FANTOZZI
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:01-CR-135-1
--------------------
Before KING, Chief Judge, and DAVIS and STEWART, Circuit Judges.
PER CURIAM:*
Charles Anthony Fantozzi entered a guilty plea pursuant to
a written plea agreement to a charge of possession with intent
to distribute approximately 365 kilograms of marijuana. The
district court found under U.S.S.G. § 4B1.1 that Fantozzi was a
career offender but granted a motion for a downward departure and
sentenced Fantozzi to 150 months of imprisonment and five years
of supervised release.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-40700
-2-
Fantozzi requests the substitution of appointed counsel and
an extension of time, or alternatively, for an extension of time
so that he may proceed pro se on appeal. Fantozzi has not made
the showing required for the court to substitute appointed
counsel. See Fifth Circuit Plan under the CJA, § 5(B). Fantozzi
did not timely inform the court that he wished to exercise his
right to represent himself on direct appeal. See United States
v. Wagner, 158 F.3d 901, 902-03 (5th Cir. 1998); see also
Martinez v. Court of Appeal of California, 528 U.S. 152, 163
(2000) (explaining that there is no constitutional right to
proceed pro se on appeal). Accordingly, the motion is DENIED.
For the first time on appeal, Fantozzi challenges his
sentence based on Blakely v. Washington, 124 S. Ct. 2531 (2004).
Fantozzi contends that the existence of prior convictions is a
finding that is not meaningfully distinguishable from any other
finding that is used to increase a sentence, and he argues that
sentencing enhancements imposed for prior convictions must be
authorized by a jury verdict or a defendant’s admission.
Although Fantozzi concedes that Almendarez Torres v. United
States, 523 U.S. 224 (1997), has not been overruled, he asserts
that Almendarez-Torres was erroneously decided and that its
viability has been undermined by recent decisions.
Because Fantozzi did not raise this issue in the district
court, our review is for plain error. To demonstrate plain
error, Fantozzi must show an error that is obvious and that
No. 04-40700
-3-
affects his substantial rights. See United States v. Mares,
402 F.3d 511, 520 (5th Cir. 2005), petition for cert. filed,
No. 04-9517 (U.S. Mar. 31, 2005).
As Fantozzi concedes, Almendarez-Torres has not been
overruled, and we are required to follow it “unless and until the
Supreme Court itself determines to overrule it.” United States
v. Izaguirre, ___ F.3d ___, No. 04-40276, 2005 WL 730070 *4 (5th
Cir. Mar. 31, 2005) (internal quotations and footnote omitted);
see also Shepard v. United States, 125 S. Ct. 1254, 1262-63 & n.5
(2005).
Fantozzi has not demonstrated plain error. See Mares,
402 F.3d at 521-22. In Blakely v. Washington, 124 S. Ct. 2531,
2537 (2004) (emphasis omitted), the Supreme Court held that the
Sixth Amendment prohibits state sentences greater than “the
maximum sentence a judge may impose solely on the basis of the
facts reflected in the jury verdict or admitted by the
defendant.” Blakely was based on the rule announced in Apprendi
v. New Jersey, 530 U.S. 466, 490 (2000), that “[o]ther than the
fact of a prior conviction, any fact that increases the penalty
for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.”
Blakely, 124 S. Ct. at 2536. In United States v. Booker, 125 S.
Ct. 738, 756 (2005), the Court reaffirmed Apprendi by holding
that “any fact (other than a prior conviction) which is necessary
to support a sentence exceeding the maximum authorized by the
No. 04-40700
-4-
facts established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a reasonable
doubt.” Apprendi and Booker explicitly exempted the fact of
prior convictions from those facts that increase a sentence that
must be found by a jury or admitted by the defendant. Booker,
125 S. Ct. at 756; Apprendi, 530 U.S. at 490. Fantozzi also has
not shown that any error affected his substantial rights.
See Mares, 402 F.3d at 521-22. Accordingly, Fantozzi has not
demonstrated plain error. Id.
AFFIRMED. MOTION DENIED.